Skellig Michael, the early medieval monastic island and UNESCO World Heritage Site off the Co. Kerry coast has been experiencing a surge in popularity and interest after having been used as a key location for two of the three installments of the new Star Wars Trilogy i.e. Episode VII: The Force Awakens (released December 2015) and the, as yet untitled, Episode VIII (Expected release: 2017).
As expected, this months opening of the regular Skellig Michael tourist season is being highly anticipated by locals and tourism authorities seeking to capitalize on the films association – although fears that normal access may be curtailed by recent storm damage to some of the visitor paths has certainly dampened some expectations.
In a startling move, however, it now seems that the operators of the Star Wars movie franchise (The Walt Disney Company) have invoked – and are to begin enforcing – digital copyright of ‘Skellig Michael’ itself.
Memorandum of Agreement
This comes as a result of news last night concerning the small print contained within an unreleased ‘Memorandum of Agreement’ between the Irish Film Board, the Department of Arts, Heritage and the Gaeltacht and a subsidiary company, Walt Disney Studios, who own the World Wide digital distribution rights to all Star Wars films and merchandise.
It is understood that since signing of the above agreement in 2014, a complex legal situation has arisen, primarily as a result of the rejection of a controversial European Union proposal, last July, to restrict what is known as the ‘Freedom of Panorama’. This usually allows for anyone to publish photographs, documentary films and other works depicting public places without restriction. Despite its rejection by the members of the European Parliament, a last minute amendment now gives rise to a significant legal ‘grey area’:
Amendment 421, adopted in committee with the votes of European People’s Party, Socialists & Cavada (Liberals):
Considers that the commercial use of photographs, video footage or other images of works which are permanently located in physical public places should always be subject to prior authorization from the authors or any proxy acting for them.
“On the “freedom of panorama” principle, such as the right to create and share images and photographs of public buildings, the text cautions that the commercial use of such reproductions should require authorization from the rightholder”
Considering the fact that Ireland already includes ‘Freedom of Panorama’ under its national copyright laws, there would appear to be little problem at all with the above, at least on a surface reading. However, the phrasing of the new amendment nevertheless carries major implications regarding the future (digital) copyrighting of the physical archaeological remains, artworks and medieval structures/buildings on Skellig Michael.
As a designated ‘National Monument in State Ownership’, Skellig is not technically a ‘public place’ per se. The island is owned by the Minister for Arts, Heritage and the Gaeltacht on behalf of the Irish people and public access is limited to specific times of the year. Indeed, visitors are only formally ‘admitted’ to the site after having undergone safety briefings from authorized Heritage Staff. As a result, it could be legally argued that Skellig Michael does not satisfy the main requirement for invoking ‘Freedom of Panorama’.
Up to now, there has never been any issue involved with the public taking of photography on the island. Indeed, over the years, relevant Ministers and heritage bodies have actively encouraged the practice in the interests of heritage and tourism. Even if it were to be deemed a ‘public place’ – under the terms of the new amendment, anyone seeking to take pictures on Skellig Michael are now apparently ‘subject to prior authorization from the authors, rightsholders or any proxy acting for them’. And this is where the new arrangements regarding Disney and Star Wars come into the equation.
The previously mentioned ‘Memorandum of Agreement’ signed by The Irish Film Board, the Department of Arts, Heritage and the Gaeltacht and Walt Disney Studios in 2014 apparently included a standard clause that carried specific mention of Disney’s assertion (as ‘authors’) of all digital film rights pertaining to merchandising for ten years from the date of agreement. Although the Minister retains all previous rights accorded to the location – for the first time in the history of the State – a second stakeholder, or digital rightsholder, is involved.
For the purposes of photographic imagery, permission from both entities now needs to be secured by anyone wishing to do so. It is my understanding that, ahead of the regular opening season, negotiations between Disney and the Department of Arts, Heritage and the Gaelteacht have failed to come to an agreement on the matter. In actual fact, official talks cannot even resume until a functioning government, and Minister, is in place. In the absence of a ‘rival’, and with no prospect of an Irish government being formed in the immediate future, Disney is now intent on enforcing its new found copyright under the proviso that within the digital sphere – any and all photography – carries commercial potential.
As a key location in the Star Wars franchise, Skellig Michael, aka ‘Star Wars Island’, aka ‘The First Jedi Temple’ is now considered an important part of the movies merchandising stream, estimated to be worth around $8 billion by the end of 2016. Disney marketing executives were apparently caught unawares at the popularity and interest shown by fans with the scenes shot on Skellig Michael, and were as unprepared with the demand for relevant merchandising products as they were with the character of Rey. It is thought that a range of models, figurines, and a specific ‘Star Wars’ Island ‘Ahch-To’ Planetary Play Set (TM), including a (Limited Edition) R2-B-Hive Hut, are being rushed into production for the 2016 Christmas toy market.
As always however, it is the ‘spin off’ merchandising involved with the lucrative computer games market that is of most interest to Disney – and a specific ‘Lego Star Wars Game’ set on the Planet ‘Ahch-To’ (TM) is also likely to hit the shelves. Given the nature of digital imagery involved, it is suspected that this is the primary motivating factor behind Disney’s desire to enforce its new copyright stake-holding in Skellig Michael.
As to how Disney will actually enforce its copyright, it is believed that they will resort to electronic means. According to an Irish Film Board insider, “At one point, they were actively negotiating with local Skellig Boat Operators who were offering to confiscate cameras on the trip over”, but they failed to come to an agreement. “The lads were looking for too much money. Disney realized that, for a fraction of what they were asking for, they could easily have a team of interns in a Hollywood office keeping tabs on all the major social media platforms. So that’s pretty much what they’re going to do”.
Essentially, what this means is that visitors to Skellig will still be free to take photographs – but any attempt to upload them online with identifying information or encoded meta-data will result in a swift DMCA (internet) takedown notice under threat of legal action. As most major social media platforms originate in whole, or in part, within the United States, they are assured that action can and will be taken on their behalf.
Widespread Anger and Frustration
Speaking on condition of anonymity, a source familiar with the Department of Heritage spoke of a widespread anger and frustration among middle and lower grade staff involved. “Its something that should have been flagged up by the legal eagles well before any agreement was signed. After all, look what happened with the Book of Kells. Sure that’s probably where they got the idea in the first place.”
Others were more practical, noting that the lack of foresight will now result in the loss of significant amounts of revenue. “They didn’t pay much for the use of Skellig, and now they’re going to rake in millions in profits from toys and games. The Irish taxpayer could have had a 50% share in all relevant ‘Ahch-To’ (TM) merchandising if certain people were on the ball.”
“To be honest, a lot of people lost the run of themselves with the prospect of a bit of Hollywood glitter. There were plenty of warnings from some naysayers who weren’t hoodwinked like the rest of the archaeological community. But nobody listened to them.”
“Having said that, in all fairness, it was a pretty comprehensive ‘Memorandum of Agreement’. There was at least two pages of text, both sides, with a lot of complicated words and detail.”